Minnesota's public defenders paint bleak picture of justice for the poor

Click to view a larger version of the Minnesota Public Defenders infographic.

Minnesota’s public defender system — plagued by deficit-inspired spending and staffing cuts — is broken. Just ask our public defenders. That’s what we did.

In a survey sent to 404 public defenders, MinnPost asked how difficult the work has become after three straight years of cuts and the loss of 68 public defender positions statewide.

According to the survey results, public defenders are spending less time researching their legal arguments, reviewing physical evidence, and preparing clients and witnesses to testify. They are also asking for extensions on hearings and trials more frequently — causing delays in an already overburdened court system.

When asked how often they are able to substantively discuss a client’s case with the client before their first court appearance together, 40 percent of respondents answered “less than five percent” of the time.

Nearly half of the public defenders who took our survey (49 percent) believe they have lost cases in the last three years that they would have won if their workload would have allowed more time for legal research.

In all, 158 public defenders from all 10 of Minnesota’s judicial districts took our 23-question survey. Most also used the survey’s comment box to provide further insight into the crisis and we collected 11,000 words of comment. Close to half of the respondents (42 percent) have worked as a public defender for 15 years or longer.

We asked, “In the last three years, how many clients have waived their right to a speedy trial or a speedy contested hearing because either you or your investigator would not be ready for the trial or hearing in time?” While the majority of respondents put the number somewhere between one and five, 13 percent put the number at 20 or more. All told, respondents reported at least 938 cases of clients waiving their constitutional right to a speedy trial or contested hearing because of the public defendant’s workload.

We also asked about clients in custody: “In the last three years, how many of your in-custody clients had to remain in custody longer than they should have because you did not have time to review their case or situation?” A quarter of respondents counted five to 10 clients. Another 16 percent said 10 or more. All told, respondents reported causing at least 567 clients to be stuck in custody because of delays related to workload.

What of the public defenders who manage to steer clear of these troubling indicators? One respondent made plain what it takes to meet the demands of a challenging caseload:

“I have worked extremely hard to not allow the increase in caseload to adversely affect quality representation of my clients, so the survey makes it look like the budget cuts have not had much impact on me. However, the impact has been on my quality of life. In the last three years I have divorced, my private business has suffered to the point where I have considered career change, I have missed vacations and family events because of work, and I have missed holidays with family. The stress has taken its toll. While I believe my hard work has minimized the impact of the cuts on my clients, it has been extremely hard on me personally.”

The public defender system exists to ensure that the poor — or anybody accused of a crime and unable to afford a private lawyer — have somebody on their side to assure a fair trial. One blunt respondent complained that media attention to public defenders and their burden only diverts attention from the people the defenders are appointed to serve:

“I hate these stupid articles about how bad it is to be a public defender. We knew it would be difficult when we signed up. Instead of doing articles about how rough we have it, do an article about how bad the situation is for our clients.”

Public defenders take on approximately 170,000 cases every year and represent 85 percent of people facing felony charges, according to the Minnesota Board of Public Defense. Minnesota public defenders carry twice the caseload recommended by the American Bar Association and sometimes more.

Turning to the Supreme Court for reliefOn Tuesday the Minnesota Supreme Court will take up the issue of funding for the Minnesota Board of Public Defense. In 2009, the court voted to impose a $75 fee on attorney registrations for one year to help fund the public defender system for one year. Unless the fee is extended, it will expire on June 30, 2011. In a petition filed in August, John Stuart, Minnesota’s chief public defender, warned that if the fee was not extended and the funding not found elsewhere it would mean the loss of another “roughly 20-25 lawyers.”

The Board of Public Defense expects to receive $1.9 million from attorney fees in fiscal year 2011, according to a memo from chief administrator Kevin Kajer.

It’s not just public defender jobs at stake on Tuesday. With fewer public defenders, Stuart said, problems with speedy trials and a backlogged court system will likely get worse. Just as troubling, he said, is the possibility of “an upswing in ethics complaints about lawyers not doing their jobs.”

The court system is like a car company that loses workers in the wheel department, Stuart explained. “You can’t just say, ‘Gee those people who put on the wheels, they really have a problem.’ The whole car company would have a problem. The whole assembly line would stop.”

Can the Legislature help?Commenting on last year’s vote to impose the attorney registration fee, Justice Paul Anderson wrote that by “underfunding public defenders and leaving it up to our court to procure financial support from lawyers, the governor and legislature have failed to meet one of their fundamental responsibilities.”

In a show of wishful thinking, the Board of Public Defense is requesting that the Legislature restore the agency’s budget to pre-cut levels for 2012-2013. But Republicans now in control of the Minnesota House and Senate face a more than $6 billion deficit and are vowing to balance the state’s budget without raising taxes. Prospect of legislative action restoring the public defense budget are grim.

It’s not that the new leadership doesn’t recognize the importance of the public defense system, but — at least at the start of the session — they’re not likely to single it out to be spared from cuts.

“I think you’re going to see cuts again across all of Minnesota’s expenditures,” said Jay Kiedrowski, a senior fellow at the University of Minnesota’s Humphrey Institute of Public Affairs. “I don’t think the public defender would be exempted in what the Republicans will do.”

However, state Sen. Warren Limmer (R-Maple Grove), the incoming chair of the Senate Judiciary and Public Safety Budget and Policy Committee, has pledged to fight for the courts. Shortcomings in the public defense system are an “ongoing issue that may have been somewhat neglected in the past,” he said.

While it’s too early to say whether the system will face further cuts, Limmer said preventing them will require a creative solution. The Legislature will need to take a “fine-toothed comb” through the budget to uncover duplication or programs that have “outlived their usefulness” and divert some of that funding to the public defense budget.

State Rep. Steve Smith (R-Mound), the incoming chair of the House Judiciary Policy and Finance Committee, has also shown concern for the public defense system. He’s worked with the Board of Public Defense in the past and has introduced bills in its favor.

Rep. Tina Liebling (DFL-Rochester) is a former public defender. She remembers always feeling stretched too thin. And while the system’s always been underfunded, it’s never been as bad as it is now, she said.

And that has implications for everyone.

“If people are going to prison or jail who should not be or who are staying longer than they should be and so on, that ends up costing the system money in other ways,” Liebling said. “If people don’t get the programming and treatment that they ought to have, that increases recidivism and costs us all in ways that it shouldn’t."

A crisis that reaches beyond MinnesotaIn a memo to Minnesota public defenders in March, obtained by MinnPost, Board of Public Defense Chair Laura Budd wrote: “In light of potential future budget cuts, please know that we are considering ALL of the options that are available to us -- including filing a lawsuit against the State of Minnesota demanding that we be appropriately funded.”

This would not be an unprecedented step. In another memo obtained by MinnPost, chief public defender Stuart provides a review of litigation involving state public defender systems suing over caseloads and funding. After reviewing cases in Arizona, Connecticut, Florida, Louisiana, Michigan, Missouri, Nevada, New York and Tennessee, Stuart shares the following conclusions:

- To win, you need individuals who have been harmed, not just statistics.

- Best chance for systematic relief is a class action + individuals. These cases are complex, you need strong civil pro bono lawyers

- Cases are also LONG, because there is usually an appeal about procedural issues before any decision on the merits.

- It helps to have SOMEONE ELSE bring the case, not the public defender, although that has a downside, lack of control.

- Good to have other players as amicus, they demonstrate that p.d. is integral to system of justice.

- One more idea: Vermont v. Brillon, 129 S.Ct.1283, says there may be relief for speedy trial violations based on a “breakdown in the public defender system.” Minnesota has a relatively short (60 days) speedy trial rule; and there were two speedy trial reversals last year ... May be a good theory, if we can show the problem is a systematic breakdown: would need several cases from different parts of the state where speedy trial violations occur because we are not available.

“Because of insufficient funding, in much of the country, training, salaries, supervision, and staffing of public defender programs are unacceptable for a country that values the rule of law. Every day, the caseloads that defenders are asked to carry force lawyers to violate their oaths as members of the bar and their duties to clients as set forth in rules of professional conduct.”

A respondent to our survey put a personal spin on The Constitution Project’s message:

“I loved my job when I started. All I ever wanted to be was a public defender. Now I work overtime that I don't get paid for in order to try not to fall too far behind; I never take time off if I'm sick because I can't lose a single day of work for any reason; I cry at work from the stress; and I have started to hate my job that I used to love.

“I struggle to find time to meet with clients who are in jail and I often have to meet with them after work hours ... We have a poor reputation with our clients due to the fact that we can't practice as well as private attorneys with smaller caseloads ... This has become a disgusting shadow of what justice for indigent people should be. This cannot continue.”

This story was produced in partnership with students at the University of Minnesota School of Journalism and Mass Communication, and funded in part with a grant from the Ethics and Excellence in Journalism Foundation.

Thank you to all of you for the time, research and thoughtfulness that you put into this very thorough article. We as citizens need to be contacting our legislators about these issues concerning very basic rights found in our constitution.

The abuse of the public defender system by Denny Hecker is inexcusable given the time and money that surely went into his case by more than one public defender.

Those who do this very important work should not have to be giving up living their lives nor experiencing the traumatic stress many are apparently suffering. This aspect of this issue concerns me as much as the fact so many cases are being delayed and poorly prepared because of time constraints. This is certainly not part of the job description these dedicated public servants were hired to fulfill.

Having been a prosecutor for 40 years I can tall you that not only are the issues discussed real but they actually understate the situation. Facing an overwhelmed defense attorney means that cases do not get resolved in a timely fashion because a guilty plea requires working with the client, it is easier to simply keep the case moving when time is not available, and unfortunately that often works to the advantage of the defense, That is, witnesses forget and disappear, busy prosecutors and police lose interest in old cases and frankly judges get impatient with the state if there is not a sweetheart deal.
Frankly, it also costs money since defendants sit in jail or commit new offenses if released where they may have been assisted by probation to actually change their behavior.
I frankly do not see the system actually taking public stands and demanding adequate funding for the courts and all of its parts.

I can see that the system is underfunded, but I would be more sympathetic if I saw evidence that the PD's were trying to be more efficient statewide. They distribute resources based on a flawed 1992 caseload study, are not participating in sharing information electronically and resist team approaches and ITV. Even doctors do telemedicine. We could also do more on the front end, streamlining and standardizing who is eligible for a public defender like was done in Dakota Count and collect payment from those that afford it. There is to much effort put into defending tradition and the status quo, though that does not make the PD's unlike court and other goverment organizations.